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District Judge Blocks Pentagon from Barring Path to Citizenship for Noncitizen Soldiers

us-army-379036_640-300x199U.S. District Judge Ellen Huvelle ruled that the Department of Defense (DOD) cannot block or delay the citizenship applications of three noncitizen soldiers serving in the U.S. military—a decision that extends to the thousands of migrant service members whose citizenship applications are in limbo. According to Judge Huvelle, the DOD is jeopardizing the future of immigrant service members, who were promised an expedited path to U.S. citizenship in exchange for eight years of service to the country.

In her 35-page opinion, Judge Huvelle writes: “Plaintiffs live in constant fear that they will lose their work or student visas or be discharged, deported, and subject to harsh punishment in their country of origin for joining a foreign military.”

Established in 2008 as a pilot program, the Military Accessions Vital to National Interest (MAVNI) program is a special recruiting program open to select immigrants interested in joining the U.S. military in exchange for U.S. citizenship. Recruits were mostly noncitizens with critical skills deemed vital to national interests, ranging from proficiency in foreign languages to specialized skills in healthcare and medicine.

Noncitizen soldiers who qualified for the program are required to pair their naturalization application with a form N-426, which certifies the honorable military service of active-duty or Selected Reserve status of qualified MAVNI enlistees. While requests for N-426 forms were typically approved within one day, this quick process was changed when the Pentagon implemented additional screening requirements for MAVNI participants on the grounds of national security concerns.

This led to a class action lawsuit filed by Mahlon Kirwa, Santhosh Meenhallimath, and Ashok Viswanathan, who were denied signed N-426 forms by the DOD. According to the Pentagon, while they indeed issued such certifications days after their submission before, they still have agency discretion about whether they should certify honorable service, thus making the N-426 unreviewable.

But Judge Huvelle disagreed.

“DOD’s N-426 policy is subject to review as a ministerial task not committed to agency discretion, for there are meaningful standards by which the court can judge agency action in this context,” her ruling states.

Two weeks before Judge Huvelle’s ruling, the DOD had introduced new requirements she said would only delay the certification of noncitizen soldiers’ forms. Under the proposed requirements, the DOD revoked the active-duty requirement but also set new guidelines that prohibit citizenship applicants from being subject to any legal or disciplinary matter. Applicants must also undergo extensive vetting and background checks and serve for specific periods of time.

But, as Huvelle found, these guidelines could very well double or even triple the length of time it would normally take for immigrant service members to have their military service certified by the DOD.

By failing to explain the change, Huvelle notes the DOD’s decision to enact new guidelines for MAVNI participants “was an arbitrary and capricious one.”

A Pentagon representative said the ruling is currently under the DOD review.

If you, or a loved one, are a foreign national serving in the military and want to know how this will affect your status and road to citizenship, talk to the legal team of the Lyttle Law Firm. Schedule a consultation with Austin immigration attorney Daniella Lyttle to discuss your options.